State Consumer Disputes Redressal Commission
M/S Yashoda Super Speciality Hospital, ... vs Cheeti Hanumantha Rao, S/O.Late ... on 17 January, 2011
It is the complainants case that on 14-2-1995 he paid the entire sale
consideration of Rs
BEFORE THE
A.P.STATE CONSUMER DISPUTES REDRESSAL COMMISSION: HYDERABAD.
F.A.No.14/2008
against C.C.No.918/2005, District Forum-I, Hyderabad.
Between:
1. M/s Yashoda Super
Speciality Hospital
Behind Hari Hara Kala Bhavan,
S.D.Road, Secunderabad-03.
2. Dr.Deen Dayal M.S.D.L.O (ENT
Surgeon)
M/s Yashoda Super Speciality hospital,
Behind Hari Hara Kala Bhavan,
S.D.Road, Secunderabad-03. ..Appellants/
Opp.parties
And
Cheeti Hanumantha Rao, S/o.late
Narsing Rao
Aged 65 years, Agriculture,
Indian,
R/o.Flat No.402, Sai Ramana
Apartments,
Vijayapuri Tarnaka,
Secunderabad-17. Respondent/
Complainant
Counsel for the Appellants:
M/s.J.Suresh Babu
Counsel for the Respondent: M/s
V.Gourisankara Rao..
QUORUM: THE HONBLE JUSTICE SRI D.APPA RAO,
PRESIDENT
AND
SMT. M.SHREESHA, HONBLE MEMBER
MONDAY, THE SEVENTEENTH DAY OF JANUARY, TWO THOUSAND ELEVEN.
(Typed to the dictation of Smt. M.Shreesha , Honble Member.) *** Aggrieved by the order in C.C.No.918/2005 on the file of District Forum-I, Hyderabad, opposite parties preferred this appeal.
The brief facts as set out in the complaint are that the complainant was admitted in opposite party No.1 hospital as he had throat pain, shortness of breath and Dysphagia and was attended by opposite party No.2. After conducting tests and basing on UGI Endoscopy findings, opposite parties have diagnosed that there was left pyriform fossa and three pieces of pyriform fossa were sent for histopathology test. The complainant was discharged on 16-7-2005 with an advise to come for review after a week with HPE report. On 23-7-2005, the complainant contacted opposite party No.2 along with HPE report who informed that there are features of focal micro invasive squamous cell carcinoma and advised to get admitted in the hospital as he had to undergo Radiotherapy as out patient and Chemotherapy as in patient. The complainant submitted that he had insurance cover from M/s.New India Assurance and hence the opposite parties have taken authorization for meeting the expenditure from this insurance coverage. The complainant was admitted for treatment on 26-7-2005 and before commencing the treatment, he visited Indo American Cancer Institute for second opinion which in turn referred the complainant for histopathology test. Dr.Rajasekhar, National Pathology Laboratory, Hyderabad gave a report dated 25-7-2005 stating that there is no evidence of malignancy in the biopsy material and for reconfirmation, the complainant visited Dr.S.Chandrasekhar Rao, who referred him to Krishna Institute of Medical Sciences which in turn referred for endoscopy examination and the upper GI endoscopy showed normal study of Pharynx, vocal cards and post cricoid regional and stated that he had Hiatus Hernia and antral Erosions. The complainant submitted that from the above reports, it was clear that he was not suffering from cancer. The complainant submitted that opposite parties have charged Rs.14,700/- from insurance coverage and an additional amount of Rs.5,000/- for further investigations. The complainant, therefore, got issued a legal notice on 10-8-2005 demanding payment of compensation and also to reimburse Rs.14,700/- and Rs.5,000/- for which the opposite parties replied stating that there was no wrong diagnosis.
It is his case that had he undergone Radiotherapy and Chemotherapy, he would have suffered a lot. Hence the complaint for a direction to the opposite parties to reimburse Rs.14,700/- towards insurance amount and also refund Rs.5,000/- towards additional expenditure together with Rs.5,00,000/- towards compensation for mental agony and costs.
Opposite parties filed counter admitting that the complainant approached opposite party No.1 hospital with complaint of throat pain etc and that opposite party no.2 attended and examined him thoroughly and found that there was Edema in the Hypopharyngial region and having difficulty in swallowing and hence he referred the patient to a Gastro-entrologist for necessary tests. G.I.Video Endoscopy revealed that there was growth in the left Pyriform Fossa and on the seeing the said reports, he opined that he was suffering due to edema in left Pyriform Fossa extending to post cricod region which is termed as tumor and it may be cancerous or non cancerous. Human body is made of different types and shapes of cells which are layered in numbers, when one type of cells grow and invade and infiltrate into another layer of cells, there are chances of these cells getting converted into carcinoma cancer.
Keeping this in view three layers of left pyriform fossa were taken and sent to Histo pathologist for further investigations. Meanwhile antiobiotics, analgestics and inflammatory drugs were administered and thereafter he was discharged. Opposite party No.2 submitted that on 23-7-2005, the complainant approached him with biopsy report, which revealed that there were cells invading Deeper layers superficially and Mononuclear cell infiltrate and if there is any invasion and infiltration of the cells, there are chances of getting converted into carcinoma, a provisional diagnosis was done that features are those of Microivasive Squamous cell Carcinoma and referred to Dr.Babaiah for confirmation.
The complainant did not care to visit Dr.Babaiah and stressed to know what the further evaluation would be and therefore he informed that Chemotherapy and Radiotherapy should be done. Then the complainant informed that he had taken insurance policy and requested opposite parties to send letter to the insurance company to meet the expenses and accordingly they have addressed a letter to the insurance company. It is the case of the opposite parties that they never asked the complainant to join the hospital immediately for taking chemotherapy and Radiotherapy treatment. They submitted that they have not received the amount or mis-utilized the guarantee letter of Rs.70,000/-. They submitted that they have stated that there are features of Micro Invasive Squamous Carcinoma cell but never confirmed it.
The reports of opposite party no.1 regarding GI endoscopy and Krishna Institute of Medical Sciences are not contradictory and submitted that Rs.14,700/- was collected towards tests, attendance of doctors, room rent, medicines etc. for the period from 14-7-2005 to 16-7-2005. They submitted that there was no negligence or wrong diagnosis on their part and the diagnosis was a provisional one as per medical guidelines and prayed for dismissal of the complaint.
Based on the evidence adduced i.e. Exs.A1 to A15 and B1 to B3 and the pleadings put forward, the District Forum allowed the complaint in part directing the opposite parties to reimburse Rs.14,700/- to the complainant together with compensation of Rs.50,000/- and costs of Rs.2,000/-.
Aggrieved by the said order, the opposite parties preferred this appeal.
The brief point that falls for consideration is whether there is any negligence on behalf of the opposite parties and if the complainant is entitled to the reliefs prayed for?
It is the complainants case that he approached opposite party no1. hospital on 14-7-2005 with complaint of throat pain, shortness of breath and dysphagia and was attended by opposite party No.2 doctor. He underwent various investigations like chest x-ray, blood test, UGI endoscopy based on which opposite parties diagnosed a growth in the left pyriform fossa and prescribed antibiotics, analgestics and anti-inflammatory treatment. Opposite party No.2 took out 3 bits from the growth in pyriform fossa and sent it histo-pathology department. As there was symptomatic improvement, opposite parties discharged the complainant on 16-7-2005 advising him to come for review after one week with the report.
The complainant visited the opposite parties on 23-7-2005 and after examining the HPE report, opposite party No.2 informed the complainant that he had focal micro invasive squamous cell carcinoma and advised him to get admitted and undergo radiotherapy and chemotherapy. Since the complainant was having insurance coverage, opposite parties got an authorization letter for treatment and guarantee of payment for an amount of Rs.70,000/-. The complainant intending to take a second opinion approached Indo American Cancer Institute and met Dr.A.Rajasekhar who gave a report dated 25-7-2005, vide Ex.A10 which evidence that there was no malignancy in the biopsy material. For further confirmation, the complainant visited Dr.S.Chandrasekhar Rao, who referred the complainant to KIMS who conducted an endoscopy and the report is evidenced vide Ex.A12, dated 26-7-2005, in which the endoscopy opinion was Hiatus Hernia, multiple erosions in antrum.
It does not say anything about carcinoma. It is the further case of the complainant that opposite parties have collected Rs.14,700/- from the client insurance and he also incurred Rs.5,000/- towards additional expenses and he claims Rs.5,00,000/- towards mental agony and compensation.
It is the case of the appellant/opposite parties that the respondent/complainant underwent a biopsy and was discharged on 16/7/2005 with an advise to come for a review after one week with the report. The report revealed that there were cells invading the deeper layers superficially and mononuclear cell infiltrate. Opposite party no.2 tentatively opined that there are features of microinvasive squamous carcinoma cells but never confirmed it. Opposite party No.2 doctor also asked the complainant to consult Dr.Bavaiah, who was an expert in cancer treatment, but the complainant did not consult him. The diagnosis was only a provisional one. Ex.A10 report given by Indo American hospital and Ex.B1 report given by the appellants are common in connection with the cell infiltration of the biopsy material. Even though the appellants have told the complainant to take the opinion of Dr.Bavaiah, the respondent/complainant did not choose to do so.
Ex.A10 clearly states that there is no evidence of malignancy in the biopsy material whereas the histopathology report of opposite parties hospital shows that there are features of focal microinvasive squamous cell carcinoma. Ex.A4 is the discharge summary of Yashoda hospital dated 16-7-2005 wherein the case discussion, the doctors opined that UGIE revealed growth in left pyriform fossa extending to Post Cricoid region. Whereas Ex.A9 endoscopy report of KIMS hospital shows a normal study of pharynx, vocal card and post Cricoid region and they say that the complainant has Hiatus Hernia and antral erosions. The learned counsel for the appellants also drew our attention to Ex.B3, which is histopathology report issued by Apollo hospitals and dated 30-8-2005 as the date of receipt of sample and the report is dated 31-8-2005. The learned counsel for the appellants contended that the same slides based on which the first histopathology report evidenced under Ex.A1 were sent to Apollo hospitals and they have given a report vide Ex.B3, in which the diagnosis states that it is highly suspicious of an invasive squamous cell carcinoma.
When there is a prima facie case, the burden of proof shifts to the hospital to establish that there is no negligence and due care and caution has been taken. We rely on the judgement of the apex court in In Savitha Garg v. National Heart Institute reported in Supreme Court and National Commission on Medical Negligence and Insurance under Consumer Protection= IV, (2004) CPJ 40 (SC), it is held by the Apex court as follows:
Burden lies on the hospital and the concerned doctor, who treated the patient to prove that there was no negligence involved in the treatment. In both contingencies i.e. contract of service and contract for service, courts have taken a view that the hospital is responsible for the acts of their permanent staff as well as for the staff, whose services are temporarily requisitioned for treatment of patients. Therefore, hospital can discharge burden by producing the treating doctor in defence that all due care and caution was taken and despite that the patient died. With this judgement, the entire burden cannot be placed on the complainant to prove negligence and it is the duty of the hospital also to satisfy that there was no lack of care of diligence.
In the instant case though Ex.A1 states that there is malignancy and this is dated 14/7/2005, the subsequent reports evidenced under Ex.A6, A8, A9 and A10 dated 25-7-2005, 26-7-2005, consecutively clearly state that there is no malignancy. The contention of the appellants is that Ex.B3 is the same as Ex.A1 and therefore their report is not wrong, is unsustainable, on the ground that there is no evidence on record that the same slide was sent and also that there was no contamination of the said slide. Keeping in view the aforesaid judgment, that when there is a prima facie case, the burden of proof shifts on the hospital, the appellants/opposite parties did not discharge this burden either by way of an expert opinion or by examining the said doctor and pathologist. It is evident from the material on record i.e. Ex.A5 that opposite party hospital also sent an authorization letter to Good health Plan Limited on 23-7-2005 for an amount of Rs.70,000/- for radiotherapy on O.P. basis and chemotherapy on I.P. basis. Hence we find force in the contention of the complainant that had he started chemotherapy without taking a second opinion, he would have been treated for cancer, which he never suffered from.
Therefore, we find no reason to interfere with the order of the District Forum with respect to direction to reimburse Rs.14,700/- to the complainant and also costs of Rs.2,000/-. However, we are of the considered view that the compensation of Rs.50,000/- is excessive, as we note from the chronological events that Ex.A1 is dated 14/7/2005, but the complainant had approached the opposite parties with this report on 23/7/2005 as narrated by him in his own complaint and the subsequent reports Exs.A6 to A10 which he is relying upon are dated 25-7-2005 and 26-7-2005 respectively, which means there is only a gap of 3 days during which period, he suffered mental agony and for which we are of the considered view that an amount of Rs.15,000/- would suffice to meet the ends of justice.
In the result this appeal is allowed in part and the order of the District Forum is modified reducing the compensation from Rs.50,000/- to Rs.15,000/- while confirming all other aspects of the order of the District Forum. Time for compliance four weeks.
Sd/-PRESIDENT.
Sd/-MEMBER.
JM Dt.-17-01-2011